470 F.

3d 450

Sidi MAKADJI, Petitioner,

v.
Alberto GONZALES, United States Attorney General, *
Respondent.
Docket No. 03-40341.

United States Court of Appeals, Second Circuit.

Argued: February 23, 2006.
Decided: December 5, 2006.

Lynn Neugebauer, Safe Horizon Immigration Law Project, Jackson

Heights, NY, for Petitioner.
Loretta F. Radford, Assistant United States Attorney (David E. O'Meilia,
United States Attorney for the Northern District of Oklahoma, on the
brief), United States Attorney's Office for the Northern District of
Oklahoma, Tulsa, OK, for Respondent.
Before LEVAL, KATZMANN, and RAGGI, Circuit Judges.
LEVAL, Circuit Judge.

Sidi Makadji petitions for review of the decision of the Board of Immigration
Appeals ("BIA" or the "agency"), which affirmed the decision of the
Immigration Judge ("IJ") denying his claims for political asylum and
withholding of removal under the Immigration and Nationality Act. The IJ
denied asylum on the ground that, after Makadji was forcibly deported from
Mauritania on account of race, he "firmly resettled" in Mali. We hold that the IJ
erred by misplacing the burden of proof on Makadji, and by finding Makadji
firmly resettled in Mali without substantial evidence to support the finding. The
IJ's denial of Makadji's withholding of removal claim was also in error, because
the IJ failed to shift the burden of proof to the government upon Makadji's
showing of past persecution. We therefore vacate the agency's decision and
remand for rehearing.

Background

I. Facts
2

Makadji is a native of Kankossa in Mauritania. He was born in 1970, went to

school for two years and worked as a farmer. In 1989, Makadji was forced to
leave Mauritania because he is black. He testified, "[T]hey claim that black
people are not Mauritanians. Therefore, they order all the blacks that they are
Mauritanian, they must leave. . . . Mauritanian officers came and order us to
leave because Mauritania is not our country and if you refuse, they will force us
out." Hearing Tr., at 14. The officers beat Makadji and broke his father's hand.
They forced Makadji and his family into trucks filled with black Mauritanians
and drove them to the border of neighboring Mali. At gunpoint, the officers
warned "never to come back. If we come back, they will kill us." Id. at 16.
Makadji's forcible deportation was apparently part of a campaign to expel
southerners and give their land to White Moors, during which, according to the
United States State Department Country Reports on Human Rights Practices,
roughly 70,000 "members of largely southern-based ethnic groups" were
expelled from 1989 to 1991. See Country Reports on Human Rights Practices
2000, Mauritania, U.S. Department. of State, Bureau of Democracy, Human
Rights, and Labor, at 7 (Feb. 2001) ("Country Report").

Makadji, his parents, and his brother crossed the Malian border on foot and
continued to the town of Bamako. According to Makadji, hearing that the Mali
government intended to send back Mauritanian refugees, he and his family did
not register with the government. They did not have permission to live in Mali.
Makadji and his family remained on the streets until a man in Bamako took
them in.

Makadji remained in Mali for ten years. Makadji, his parents and brother lived
together in a room offered to them as an act of charity (apparently by the same
man who originally took them in). Makadj i explained that there was no
certainty that the room would be permanently available. Asked whether he
worked in Mali, Makadji testified, "[I]t was just odd jobs daily. Sometime I
don't have anything. Just to help myself and my parents to survive. There was
no work." Hearing Tr., at 17.

During his time in Mali, Makadji did not obtain any official permission or
recognition from the Malian government. His father obtained for him a
Mauritanian I.D. card by bringing Makadji's birth certificate to the Mauritanian
embassy. According to Makadji, his father obtained the I.D. card "[b]ecause in
Mali we did not have Mali documents so we need this [identification card].
Before I go anywhere I could be recognized as Mauritanian." Id. at 18. In 1999,
Makadji left Mali using another person's passport and traveled, via Ghana, to

the United States. As to why he left Mali, he explained, "It was not easy 10
years for us because Mali government did not have us, in fact, Mali government
was blaming the Mauritanians there for all the problems they have, disease or if
they lack of whatever they're lacking they said is because of us so I have to
leave there because things were getting bad for us." Id. at 18-19. Makadji's
parents and brother stayed in Mali and remained there as of the hearing in this
case. Makadji testified that his family did not come to the United States
because "[t]hey don't have the means to come here. It's not easy to come." Id. at
25-26. While in the United States, Makadji has sent part of his earnings from
working in a bakery home to his family.
6

As for returning to Mali or Mauritania, Makadji testified, "I cannot go back to

Mali because I suffered in Mali, so I don't want to go back." Id. at 21. And, "[i]f
I were to go back to Mauritania today, what I have suffered before, it will be
even worse for me. I'm sure of that." Id. Makadji explained that his family
remains in Mali because, "[a]lthough they are [in a] difficult situation there, it's
always better for them to remain there as long as I am here, I will help and I'm
working I will at least do my best to help them. It's better for them to stay there
than going back home [to Mauritania]." Id. at 25-26. His family has not tried to
return to Mauritania, because "[w]e never forgot the warning they give us if we
go back, we return there, we'll be killed, so we just remember that." Id. at 2021.
II. Procedure

In April 2000, Makadji filed an application for asylum, withholding of removal,

and relief under CAT. At the hearing before the IJ, Makadji's primary evidence
was (1) his testimony, summarized above; (2) a letter from his father dated
November 1999, saying, "The Malian Government will not grant rights for us.
They want us to repatriate to Mauritania"; and (3) the Country Report on
Human Rights Practices for Mauritania 2000, issued by the United States
State Department. The Country Report documents the "the redistribution of
land [in Mauritania] from southerners and Haratines to White Moors" and that
"some southerners . . . had been expelled or fled from the country from 1989 to
1991." Country Report, at 4-5. It adds that "[t]he Government continued to
welcome the return of any citizens who had been expelled or who had fled from
1989 to 1991," id. at 3, and that some of those returning to Mauritania after the
1989 crisis were granted land rights, while others were not, id. at 4-5. It asserts,
"The Government has stated since 1993 that any citizen outside the country
may return," and 33,248 returnees had been documented out of the roughly
70,000 who were expelled during the 1989-91 crisis. Id. at 7.

Although finding Makadji's testimony credible, the IJ denied Makadji's petition,

concluding that the Malian government implicitly offered permanent
resettlement to Makadji and his family, which made Makadji ineligible for
asylum. In support of this finding, the IJ emphasized that Makadji resided in
Mali for ten years; his family remained in Mali; Makadji offered no evidence to
establish that the Malian government engaged in wholesale repatriation of
Mauritanians or intended to deport him or his family to Mauritania, or that his
parents "are living a surreptitious[] existence in Mali"; Makadji worked odd
jobs in Mali; and Makadji's father obtained for him a Mauritanian I.D. card, the
purpose of which was "to proclaim that he was a Mauritanian citizen while
living in Mali."

The IJ also denied Makadji's claim for withholding of removal, because

Makadji "has not established that it is clearly probable that he will be harmed if
he returns to Mauritania." The IJ characterized Makadji's beating and
deportation from Mauritania as "past persecution," but found essentially that
Makadji failed to establish that circumstances had not changed in Mauritania
since 1989. The IJ relied heavily on the Country Report in finding that
Mauritania had admitted many returnees who were persecuted in 1989.1 Upon
these findings, the IJ ordered Makadji's removal. On Makadji's appeal, the BIA
affirmed the decision of the IJ without discussion.

Discussion
I. Asylum Firm Resettlement
10

As noted above, the IJ denied Makadji's application for asylum premised on

likelihood of persecution in Mauritania, concluding that Makadji was ineligible
for asylum because he had been offered permanent resettlement in Mali and
was firmly resettled there. In our view this ruling was flawed and requires that
we remand the case for two related reasons.2 First, the IJ erroneously placed
the burden of proof regarding the question of resettlement on Makadji. Second,
the IJ's conclusion was not supported by substantial evidence in the record
considered as a whole. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d
Cir.2003) ("[A] finding will stand if it is supported by reasonable, substantial
and probative evidence in the record when considered as a whole." (quotation
marks omitted)).

11

An alien seeking asylum in the United States by reason of persecution in his

homeland is ineligible for this relief if he "firmly resettled" in another country
prior to arriving in the United States. See 8 U.S.C. 1158(b)(2)(A)(vi); 8

C.F.R. 208.13(c). Courts have explained that asylum is available "to protect
those arrivals with nowhere else to turn," whereas an alien who firmly resettled
in another country after leaving the place of persecution has found a safe
homeland. Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir.2006); see Rosenberg v.
Yee Chien Woo, 402 U.S. 49, 55, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971). The
regulation covering determination of firm resettlement provides:
12

An alien is considered to be firmly resettled if, prior to arrival in the United

States, he or she entered into another country with, or while in that country
received, an offer of permanent resident status, citizenship, or some other type
of permanent resettlement unless he or she establishes:

13

(a) That his or her entry into that country was a necessary consequence of his or
her flight from persecution, that he or she remained in that country only as long
as was necessary to arrange on-ward travel, and that he or she did not establish
significant ties in that country; or

14

(b) That the conditions of his or her residence in that country were so
substantially and consciously restricted by the authority of the country of
refuge that he or she was not in fact resettled. In making his or her
determination, the asylum officer or immigration judge shall consider the
conditions under which other residents of the country live; the type of housing,
whether permanent or temporary, made available to the refugee; . . . and the
extent to which the refugee received permission to hold property and to enjoy
other rights and privileges, such as travel documentation that includes a right of
entry or reentry, education, public relief, or naturalization, ordinarily available
to others resident in the country.

15

8 C.F.R. 208.15.

16

Under this scheme, the government initially bears the burden of establishing
that a petitioner firmly resettled. See Sall, 437 F.3d at 234. If the government
persuades the IJ that the petitioner firmly resettled and the evidence is legally
sufficient to support that conclusion, then the burden shifts to the petitioner to
establish an exception noted in the regulation. See 8 C.F.R. 208.15; Sall, 437
F.3d at 234.

17

The IJ erred as a matter of law in ruling that Makadji firmly resettled. To reach
the conclusion that Makadji was firmly resettled, the IJ relied largely on the
absence of evidence rebutting permanent resettlement, rather than on evidence
establishing the fact of permanent resettlement. For example, the IJ

emphasized,
18

No evidence has been offered to this Court to establish that the Malian
government intends on repatriating or deporting his family. . . . No evidence
has been offered to indicate that his parents are living a surreptitious[] existence
in Mali. . . . [Makadji] has not established that his entry into Mali and his
habitation in Mali [were] only as long as was necessary to arrange onward
travel. . . . [Makadji] has offered no objective evidence to establish that the
Malian government is engaged in wholesale repatriation or deportation of
Mauritanian citizens.

19

It is clear that the IJ's finding of firm resettlement depended largely on

Makadji's failure to offer convincing evidence that he was not firmly resettled.
The IJ, in other words, effectively placed the burden of proof on the question
on Makadji and found against him because of his failure to carry that burden.
Furthermore, without reliance on inferences from Makadji's failure to offer
evidence to the contrary, the record could not support the conclusion that
Makadji was welcome to remain in Mali on a permanent basis.

20

It is not entirely clear, and we need not decide in this case, what the
government would need to show in order to establish permanent resettlement.
Regulation 208.15 speaks of an "offer of permanent resident status,
citizenship, or some other type of permanent resettlement." Many courts to
consider the question have nonetheless assumed that the government's burden
can be satisfied without need to show a formal or express "offer," if the
circumstances of the person's existence in a country demonstrate that the person
was effectively accepted by that nation as a permanent resident. See Sall, 437
F.3d at 232; Mussie v. INS, 172 F.3d 329, 331 (4th Cir.1999). The evidence
here showed no such thing.

21

The positive evidence on which the IJ relied was primarily the fact that
Makadji had remained ten years in Mali (and his family remained there longer
after his departure). Additional facts noted by the IJ were that Makadji had
worked "odd jobs" in Mali to earn money, the family had lived throughout the
stay in Mali in a room in the house of a man who had charitably offered them
shelter, and Makadji's father had gone to the Mauritanian embassy in Mali to
obtain a Mauritanian identity card for Makadji.

22

The duration of Makadji's stay in Mali was by itself insufficient to support the
IJ's conclusion. While the duration of a refugee's stay in another country can be
significant in establishing that the refugee was permanently welcome there, it is

not sufficient. See Sall, 437 F.3d at 235 ("[T]he mere passage of four years,
standing alone, does not constitute firm resettlement."). Before duration of stay
can logically demonstrate that the nation of refuge has accepted the fugitive as
a permanent resident, the circumstances must support the inference either that
its relevant authorities were at least aware of the refugee's presence, see, e.g.,
Mussie, 172 F.3d at 331-32 (upholding finding that petitioner firmly resettled in
Germany where she lived for six years and received government assistance,
worked, paid taxes and rented an apartment); Farbakhsh v. INS, 20 F.3d 877,
882 (8th Cir.1994) (upholding finding that petitioner firmly resettled in Spain
where he lived nearly four years and had applied for refugee status), or that it
somehow accepted as permanent a class of persons to which he belongs, see,
e.g., Chinese Am. Civic Council v. Attorney General, 566 F.2d 321, 328 & n. 17
(D.C.Cir. 1977) (upholding finding that petitioners firmly resettled in Hong
Kong where they lived sixteen to twenty years and were among a class of
refugees accepted by the government for unconditional residence). It is not
unusual for refugees seeking shelter from persecution to enter a new country
without their entry being recorded and to earn their living in a sub-rosa, cash
economy without generating official records of their presence. See, e.g., Sall,
437 F.3d at 231; Diallo v. Ashcroft, 381 F.3d 687, 691 (7th Cir.2001). The fact
that a refugee spends years in a country of refuge without his presence being
known to the relevant authorities of the government would in no way support a
logical inference that the country had extended the privilege of permanent
residence.
23

Thus, courts have required more than mere duration of refuge to support the
conclusion that permanent resettlement was established. In Sall, we considered
the case of another black refugee from persecution in Mauritania who was
forcibly expelled by soldiers at gunpoint. 437 F.3d at 231. Sall was forced to
cross the border into Senegal. Id. He spent more than five years in Senegal,
staying four and a half years in a refugee camp, then making his way to Dakar
where he earned tips for nine months by unloading and carrying goods, and
finally found passage to the United States where he sought asylum. Id. In a
ruling quite similar to the one before us, the IJ denied asylum, concluding that
Sall was ineligible because he was "firmly resettled" in Senegal before seeking
asylum in the United States. Id. at 232. After endorsement of the IJ's ruling by
the BIA, we vacated and remanded because the finding of firm resettlement
was not supported by substantial evidence and the IJ erred in placing the burden
of proof on the issue on Sall. Id. at 233-35. Our reasoning in this case is
similar.3

24

The Seventh Circuit reached a similar decision in Diallo, 381 F.3d 687, another
case of a refugee from Mauritania. Diallo was expelled from Mauritania into

Senegal, where he spent four years "selling small things and living with a
former acquaintance from Mauritania in a rented apartment. . . . [H]e had
neither a work permit nor official permission to remain there, [but] was not
bothered by the Senegalese government." Id. at 691 (quotation marks omitted).
Diallo's circumstances in the country of putative resettlement were very similar
to those of Sall, and of Makadji. The IJ and the BIA found firm resettlement in
Senegal, which barred grant of asylum. Id. at 691-92. After extensive
discussion, the Seventh Circuit rejected this ruling. Quoting the Third Circuit in
the case of Abdille v. Ashcroft, 242 F.3d 477, 487 (3d Cir.2001), the court
explained, "[A]bsent some government dispensation, an immigrant who
surreptitiously enters a nation without its authorization cannot obtain official
resident status no matter his length of stay, his intent, or the extent of the
familial and economic conditions he develops. Citizenship or permanent
residency cannot be gained by adverse possession." Diallo, 381 F.3d at 693.
25

The other facts upon which the IJ relied, in addition to the duration of Makadji's
stay in Mali, added little or no support for the conclusion that Mali had granted
him permanent residence. There was no showing that the government of Mali
had any record of his presence there. His entry apparently was not recorded
when Mauritanian soldiers forced him across the border; nor was there
evidence supporting an inference that the government ever learned of his
presence. The IJ noted three facts: that Makadji "worked odd jobs," that his
family "resided in a home," and that Makadji's father obtained identity papers
for him from the Mauritanian embassy. As for his earning pay by work, there
was no evidence suggesting that his employment was known to the
government. To the contrary, Makadji's work was odd jobs, presumably paid in
cash (there was no evidence to the contrary), which would have created no
visible record. It is true as the IJ said that the family lived "in a home," but it
was not their home. So far as the evidence showed, out of pity a man provided
the family with a room in his house. Once again, nothing about this
arrangement in any way supports an inference that the government was aware
of their presence in the country and agreed to its permanence. And as for the
identity document obtained for Makadji by his father, it was not obtained from
the Mali government, but from the Mauritanian embassy. The fact that
Makadji's father obtained an identity card for him from the Mauritanian
government in no way supports the proposition that the Mali government was
aware of his presence, much less agreed to make it permanent.

26

In short, as stated above, even when reviewed under the liberal substantial
evidence test, the evidence was insufficient to support an inference that
Makadji was accorded permanent resettlement in Mali. We cannot state with
confidence that the IJ would have made the same decision (of firm

resettlement) in the absence of the errors, particularly because of the erroneous

placement of the burden on Makadji and because Makadji's evidence, which the
IJ generally credited, quite clearly indicated the contrary. We must accordingly
vacate the finding of firm resettlement and remand for reconsideration.
II. Withholding of Removal
27

The agency's denial of Makadji's claim for withholding of removal was also in
error, because the IJ did not shift the burden of proof to the government with
respect to likelihood of persecution in Mauritania upon Makadji's showing of
past persecution. Makadji offered credible testimony that he was beaten and
deported at gunpoint from Mauritania. The IJ characterized Makadji's
deportation as "past persecution," but denied Makadji's claim because Makadji
failed to establish that it is clearly probable that he will be harmed if returns to
Mauritania. Once Makadji showed that he suffered past persecution, however,
the burden of proof should have shifted to the government. See 8 C.F.R.
208.16(b)(1)(ii). The government bore the burden of establishing by a
preponderance of the evidence that "[t]here has been a fundamental change in
circumstances such that [Makadji's] life or freedom would not be threatened on
account of [race] upon [Makadji's] removal to [Mauritania]." See id. at
208.16(b)(1)(i)(A). Because the IJ did not shift the burden from Makadji to the
government upon his showing of past persecution, the denial of withholding of
removal was in error.

Conclusion
28

For the foregoing reasons, we vacate the decision of the agency and remand for
rehearing.

Notes:
*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General

Alberto Gonzales is substituted for his predecessor, Attorney General John
Ashcroft, as the respondent in this case

The IJ also found that Makadji failed to establish that he would be tortured
upon return to Mauritania and denied his CAT claim. Makadji did not appeal
the denial of his CAT claim to the BIA or this Court. We therefore do not
consider this claimSee 8 U.S.C. 1252(d); Yueqing Zhang v. Gonzales, 426
F.3d 540, 541 n. 1 (2d Cir.2005).

When the BIA affirms the IJ's decision without discussion, we review the IJ's
decision as the final agency determinationSee 8 C.F.R. 1003.1(e)(4); Twum v.
INS, 411 F.3d 54, 58 (2d Cir.2005).

We acknowledge a seemingly contradictory footnote in theSall opinion, which

states in dictum, "we agree with our sister circuits [Cheo v. INS, 162 F.3d 1227
(9th Cir.1998), and Chinese Am. Civic Council v. Attorney General, 566 F.2d
321 (D.C.Cir.1977)] that have held that a lengthy, peaceful stay in a third
country creates a presumption of firm resettlement that an applicant has the
burden to rebut." 437 F.3d at 234 n. 6. This reference to a "lengthy, peaceful
stay" cannot, however, be read in isolation. Sall lived a seemingly peaceful,
although meager, existence for over five years in Senegal; nonetheless, we
found absence of substantial evidence to support an inference of firm
resettlement and ruled that the burden of proof on the issue remained on the
government. The footnote in Sall concludes saying that "Sall's stay in Senegal
does not appear to have been sufficiently `undisturbed' and `peaceful' to create a
presumption of firm resettlement, notwithstanding the five-year length of his
stay." 437 F.3d at 234 n. 6. There was no evidence of any governmental
interference or threat to the peace of Sall's existence while he was in Senegal.
Indeed, the footnote clearly intends to note deficiencies in the government's
evidence, which prevented a finding of firm resettlement. As we understand it,
the deficiency lay in the government's failure to show, in addition to the
duration of Sall's stay in Senegal, evidence either that the Senegal government
was aware of his presence and accepted it or had adopted any sort of official
policy of permanent acceptance of such refugees. We therefore believe the
dictum in the Sall footnote must be understood not as a contradiction of the Sall
holding, but rather as confirming the essential proposition of the holding that
duration of residence alone will not discharge the government's burden of
showing firm resettlement unless accompanied by circumstances which will
logically support the inference that the government of that country has
consented to permanent settlement.
The authorities from other circuits which are cited in the footnote are consistent
with this interpretation. As for Chinese American, the inference of permanent
resettlement of the Chinese refugees in Hong Kong did not depend solely on
the duration of their stay, but rather on the Hong Kong Immigration Ordinance
of 1971, which effectively granted residence to persons of Chinese race who
had resided in Hong Kong for seven years. 566 F.2d at 328 & n. 17. And as for
Cheo, it was decided in 1998 under a regulation no longer in effect, 8 C.F.R.
208.14(c) (1995 version), which provided that "if a ground for denial of asylum,
such as firm resettlement, `may apply,' the applicant has the burden of proving
by a preponderance of the evidence that the ground does not apply." Cheo, 162

F.3d at 1229. Accordingly, under the regulatory scheme which applied at the
time, the burden with respect to resettlement was on the petitioner, not on the
government.